As members of the public and patentees, we all should have an interest in improving patent examination, and thus patent quality. We should favor correct examination at the outset rather than trying to address a wrongly granted patent after issuance – when both the burden of proving invalidity and the cost of doing so are higher and the public has already expended considerable resources avoiding infringement.

For 21 consecutive years, IBM has been the leading recipient of US patents and, through-out this period, we have consistently supported efforts to advance and enable robust pat-ent examination. We organized the Peer to Patent pilot project, in conjunction with New York Law School and the USPTO that demonstrated the feasibility of crowdsourcing prior art, and was particularly effective at identifying non-patent technical literature. We promoted the third-party submission of prior art provisions of the America Invents Act to enable the benefits of crowdsourcing prior art to become part of the examination process for all patents. In addition, we have for several decades published technical journals and documentation — including the IBM Technical Disclosure Bulletin — that are among the non-patent technical literature most widely cited by patent examiners during patent ex-amination. Finally, we have long cooperated with the USPTO in providing technical education for patent examiners and we will continue to do so.

The patent system benefits us all by promoting innovation. We call on other users of the patent system to join IBM in supporting and assisting the USPTO in enhancing the qual-ity of patent examination.

As the leading recipient of U.S. Patents for 20 consecutive years, we take pride in knowing that over the last 20 years the innovative talents of IBM inventors have generated thousands of original ideas and inventions that will enable fundamental advancements in technology and society. We are also proud because we believe patent leadership comes with a responsibility to continuously strive to improve the patent system, and we have taken many steps with a goal of fulfilling that obligation.

Patent leadership is an important reflection of IBM’s commitment to R&D and innovation. We believe our role as a leader places us in a unique position to help shape the patent system in the U.S. to promote innovation. Of course, this is a task that is never truly finished.

Among the steps we’ve taken were to unilaterally commit to raise the bar on the technical content of business method patent applications; organize the Peer to Patent project to validate the ability of the public to assist patent examiners in identifying prior art (a capability now codified in the America Invents Act); promote open innovation by pledging not to assert our patent rights in select areas of societal importance such as open source software, health care, and the environment; and demonstrate how metrics can be used to improve patent system transparency. We have also submitted numerous amicus briefs urging courts to interpret the law so as to best encourage innovation.

These were not actions that promoted our self interest or favored our short term business prospects. We believed, however, that they were in the long-term interest of the health of the patent system and that what is good for innovation is ultimately also good for IBM. That is why we continue to strive to optimize the patent system for all constituents.

Today, with many pundits arguing for the elimination of patents relating to software, we are advocating for the need to continue to protect this pervasive platform for innovation, and pointing out the inconsistency of protecting processes implemented mechanically or electrically (but not protecting the same processes implemented using software).

While some may question our motives, we will continue to take actions that we believe aid the patent system in fulfilling its objective of promoting innovation. We view that as one of the responsibilities of patent leadership.

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Recently, the Northwestern University School of Law surveyed the progress, status, and future of the groundbreaking Peer-to-Patent (P2P) project in a podcast conversation with Manny Schecter, IBM’s Chief Patent Counsel, Mark Webbink, professor of law and executive director of the Center for Patent Innovations at New York Law School, and Christopher Wong, Postgraduate Fellow at the Center for Patent Innovations at New York Law School.

The P2P discussion coincided with the release of a paper entitled “Peer to Patent: A Cure for Our Ailing Patent Examination System” from the Northwestern Journal of Technology and Intellectual Property, which examines the Peer-to-Patent and considers project’s ability to help heal the patent system.

With current and previous P2P pilots demonstrating positive results and potential for greater impact, and additional global patent offices considering pilots in the future, we look forward to collaboration among more and more global patent offices to further implement and optimize the untapped benefits and efficiencies that the project can deliver to the patent examination process.

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The welcome news that the USPTO announced a new pilot for the Peer-to-Patent project (also known as Peer Review at the USPTO) has surprisingly revived a now-tired refrain of criticism from some members of the IP community, such as:

The public does not care and will not participate. Patent examiners will be flooded by the submission of prior art references. Members of the public do not understand claims, are not trained as patent lawyers, and are not able to do what patent examiners do. The public will abuse the system.

Please, and with all due respect — it’s time for these criticisms to stop. The record shows they are off the mark.

I have been involved with the project from the very beginning, and none of these criticisms have proven to be real. I recently attended a meeting in which representatives of nine major worldwide patent offices discussed the results of pilots run by four of those patent offices. All four reported essentially the same thing: clear validation that the public is capable of identifying relevant prior art references for patent examiners to consider in examining published patent applications.

The public did participate and the system worked to prevent examiners from being flooded with prior art references. The public did not need to understand the claims as fully as a patent attorney in order to contribute relevant art. The role of patent examiners was in no way diminished – they retained sole control over the outcome of examination. There was no abuse either.

These are precisely the reasons why the USPTO announced a second pilot. It is also why the patent offices that have yet to run pilots were in attendance – they embraced the positive results and hope to leverage them in the future.

Why the criticism then? Who knows. But it is ironic that the naysayers oppose innovations to improve the very process for guarding and promoting innovation.

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“Everybody talks about the weather but nobody does anything about it.” Rumor has it this old saw came from Mark Twain and he could just as easily have been talking about patents. The commonly heard gripe is that there are too many bad patents being granted on stuff that is old or plainly obvious to anyone who knows about the field of the invention. The big difference with patents is that, unlike the weather, we do have a chance to do something about it. The peer to patent project (P2P) is all about providing PHOSITAs (that is people having ordinary skill in the art – aka those people who know about the field of an invention) with the means to share their knowledge with patent examiners to help them make better decisions in granting patents. In its third year now, the Peer to Patent project has sponsored pilot programs at the U.S., Japanese, and Australian patent offices and has encouraged other patent offices to consider pilot programs.

In these pilots, published patent applications are placed on special websites that enable members of the public who have signed up as peers to review these applications and submit prior art to the site. The community of registered peers then ranks submitted prior art in terms of its relevance to the patent application, and the top prior art items are passed on to the examiner to consider as part of the examination process. This is a simple and powerful example of the application of crowdsourcing principles that have been at the heart of other successful projects such as the open source software movement, to the patent examination process. The results of the U.S. pilot, which was completed in June 2009 and is rumored to be restarting with expanded subject matter areas this month, have been promising and show that communities of experts are motivated to provide prior art (after all they are the people who will have to deal most directly with the consequences of a wrongly granted patent in their field) and that their input can improve decision making in the patent examination process.

A conference was held in Geneva last week at the offices of WIPO for members of patent offices from countries and international filing agencies that have previously or are currently running P2P pilots as well as those considering pilots in the near future. Joining them was a group of interested patent professionals from industry and academia including Manny Schecter, IBM’s Chief Patent Counsel. At this conference, the attendees shared experiences and exchanged their visions for the future of this exciting work with an eye toward making peer review a regular part of the patent examination process on a national and global scale. One item of great interest in this regard is the notion of sharing the prior art uncovered by peers among different patent offices examining counterpart applications for a given invention.

This is good news for fans of P2P. Peer to Patent gives patent quality advocates a means to move from “everyone talks about it” to “everyone acts on it,” and if we do this right we will most certainly clear some clouds of doubt from the patent system.